Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1

Chair's Report to Members

By Bruce M. Lyons

New Committee Looks at DNA and the Death Penalty

Those of us who attended the Section's fall CLE program heard startling statistics about wrongful convictions. These statistics and the interest of the audience highlight the importance of DNA evidence in the criminal justice system.

Peter Neufeld spoke of 63 cases that were studied in which it was estimated that 25 percent of those convicted were represented by incompetent counsel, while 80 percent of those cases involved misidentification resulting in wrongful convictions. Almost one-third of the cases had faulty forensic science, and 21 percent included false confessions.

Peter Neufeld and Barry Scheck are founders of the Innocence Project at Cardozo Law School. They emphasize that there is currently no way to determine whether these startling statistics accurately reflect national trends, but I see them as a cry for action.

To get us started, I have established an ad hoc committee on DNA composed of Peter Neufeld, Prof. James Staars, Prof. William Thompson, assistant solicitor Brent Grey, and public defender Rita Frey. They have met and are attempting to set immediate goals as well as an action plan for the committee. At a minimum, we expect to suggest guidelines on the use of DNA in criminal cases together with further case reviews to determine what went systemically wrong and to suggest corrective measures.

The guidelines and case reviews are only aspirations at this time, but setting up the committee was the big first step. The need is critical now, when at least two states have addressed death penalty moratoriums. In fact, a death penalty moratorium was passed by the Nebraska legislature, but ultimately vetoed by the governor. In contrast, Governor George Ryan of Illinois recently ordered a moratorium, noting that 13 death penalty convictions in that state were reversed since 1977. Understandably, the governor said the system was, "fraught with error."

In Florida, where I practice, 18 individuals have been freed from death row, either because of trial error or evidence indicating that the wrong person was convicted. Despite these alarming numbers, Florida-by a one vote majority-passed legislation that makes major changes in death cases that include setting five years as the goal for cases from trial to execution, reducing filing deadlines, and providing retaliatory action against lawyers not following the restrictions imposed by the legislation.

Most recently, the ABA expressed its concern with this legislation, which may jeopardize the constitutionality of Florida's capital punishment system on due process and fundamental fairness grounds. ABA President William Paul characterized certain sections of this new act that attempt to "rigidly circumscribe what counsel can and cannot do in the course of representation" as being in violation of ABA policy that supports competent, qualified, and conflict-free counsel in postconviction proceedings.

The importance of our ad hoc committee, in light of the statistics and the legislation just passed in Florida, cannot be overemphasized. This is not a question of abolition, but one of common sense. The miscarriages of justice described by Neufeld's statistics will not change until our lawmakers recognize that a competent attorney-appropriately compensated-is mandatory in death penalty cases.

The February 11, 2000, editorial in USA Today read: "It's no surprise that concern about the death penalty is rising, The system's multiple flaws from prosecutorial misconduct to defense incompetence to perjury and plain old error grow more obvious with each passing reprieve."

I believe it is time-and our professional duty-to come to grips with this system that fails so often and so miserably. Improvement is surely necessary. Our efforts, through the committee, begin the search for a cure. n

Bruce M. Lyons is chair of the Criminal Justice Section and a partner with Lyons & Sanders, Chartered, in Ft. Lauderdale, Florida.